LIES BEHIND BARS: AN ANALYSIS OF THE PROBLEMATIC RELIANCE ON JAILHOUSE INFORMANT TESTIMONY IN THE CRIMINAL JUSTICE SYSTEM AND A TEXAS-SIZED ATTEMPT TO ADDRESS THE ISSUE.

• Author: Allen, Luke G.
• Position: Texas House Bill 34

INTRODUCTION

The advent of DNA technology in the late 1980s led to a wave of exonerations in the United States, shedding light on major problems with the U.S. criminal justice system. (1) Many of these wrongful convictions were traced back to criminal informants, colloquially referred to as "snitches," who provided incriminating testimony in exchange for a sentence reduction, leniency, inmate privileges, or some other perk. (2) Notably, criminal informants are the leading cause of wrongful convictions in capital cases, accounting for 45.9% of death row exonerations. (3) The correlation between wrongful convictions and informant testimony is a cause for concern, especially in Texas, where more people have been executed and exonerated than anywhere else in the country. (4) This Note analyzes the use of criminal informants with a particular focus on jailhouse informants--inmates that come forward with the "confessions" of fellow inmates. (5) First, this Note discusses the broad use of criminal informants throughout history and the problems that have arisen therefrom. (6) Second, it examines Nolley v. State, (7) the Texas Court of Criminal Appeals case that inspired legislative change in Texas. (8) Third, this Note assesses Texas House Bill 34, (9) which is Texas's latest legislative effort to regulate the use of jailhouse informants and has been referred to as "the most comprehensive effort yet to rein in the dangers of transactional snitching." (10) Finally, this Note proposes a solution to address the problem of unreliable jailhouse informant testimony that requires judges to serve a "gatekeeping role" through which they could filter out unreliable testimony before trial. (11) As part of this solution, this Note recommends giving judges and defense attorneys access to a statewide database containing information on every jailhouse informant ever used so that they do not have to rely on the prosecution to produce that information. Though this solution will add to the workload of judges, it is necessary to prevent prosecutorial misconduct and ensure the integrity of the U.S. criminal justice system.

1. INFORMANT USE THROUGHOUT HISTORY

   The criminal informant system dates back to 18th century Great Britain. (12) In old England, Parliament offered monetary rewards in exchange for incriminating information. (13) This "blood money" cultivated lies and fear within the society and created a "cycle of betrayal," where snitches sold out other people only to be later sold out themselves. (14) This reality is exemplified by the case of Charles Cane, who "provided evidence that sent two men to their deaths in 1755. A few months later, a snitch did unto him as he had done unto others.... Cane was hanged at Tyburn in 1756 ...," (15)

   The criminal informant system likely came to the New World aboard the Mayflower. (16) In fact, the first known wrongful conviction in the United States--the 1819 conviction of Jesse Boom in Manchester, Vermont--can be traced back to a jailhouse informant. (17) The informant, Silas Merrill, shared a jail cell with Jessee Boom and would later testify that Jessee confessed to a murder. (18) Luckily, Boom was saved from the noose when the "murder victim" turned up alive in New Jersey. (19)

   Though the "blood money" of the 1700s has been replaced by sentencing leniency and other perks that are more hidden from the public eye, the informant system remains prevalent in modern America. (20) Every year, the government offers thousands of informants lighter sentences or leniency in exchange for incriminating testimony. (21) The U.S. Sentencing Commission reports that defendants across all categories of federal offenses receive sentence reductions for cooperation with police and prosecutors. (22) Additionally, the Commission reports that at least half of all defendants facing federal drug charges cooperate with agents in some way. (23) While this federal data points to widespread informant use, criminology studies at the state and local levels indicate that informant use is even more prevalent than federal data suggests. (24)

   Perhaps the most glaring statistics that evidence informant use in modern America are those that relate to exonerations. Criminal informants are the leading cause of wrongful convictions in capital cases, playing a role in about fifty percent of death row exonerations. (25) Furthermore, jailhouse informant testimony is involved in about twenty percent of all DNA-based exonerations. (26) Though the data on informant use is somewhat limited, (27) these reports and findings confirm that the informant system remains a pervasive reality. (28)

   1. An Incentive-Fueled System

      The informant system is fueled and perpetuated by incentives. On one side of the table, prosecutors and law enforcement officials face immense pressure to secure convictions. Informants provide them with a relatively simple way to solve complicated crimes. One scholar explains that "[i]n some instances, such as white-collar or gang crime, criminal activity is so secretive, complex, or hard to detect, or involves such ever-present threats of violence against co-conspirators straying from the criminal fold, that prosecution is impracticable without informants." (29) Another writes:

      There is a cold brutality and inherent risk of unreliability in the way we use the threat of vastly greater prison time to squeeze information out of culpable defendants. But no equally effective tool for prying closely held information about corrupt dealings or other, less genteel forms of organized crime, has been devised. (30) Prosecutors have wide discretion and many resources at their disposal when it comes to dealing with informants. (31) They can drop charges, refrain from arresting someone, or recommend a lower sentence in exchange for information. (32) In sum, informant bargaining serves as an invaluable tool in the prosecutor's briefcase--one that is used in thousands of cases every year. (33)

      On the opposite side of the table, becoming an informant serves as an appealing alternative to facing mandatory minimums, overcrowded prisons, and serious criminal charges. The U.S. Sentencing Guidelines allow for a departure from a mandatory minimum sentence when an offender has offered "substantial assistance" in investigating or prosecuting another wrongdoer. (34) Federal Rule of Criminal Procedure 35 allows for the reduction of a sentence if a defendant provides "substantial assistance" after having already received the sentence. (35) While the most common benefit informants receive is sentencing leniency, other possible benefits include improved conditions of confinement, drugs, money, and even legal immigration status for family members or themselves. (36) These strong incentives on both sides of the table ultimately work together to perpetuate the informant system.

   2. Jailhouse Informants

      Jailhouse informants merit special consideration, as they are notoriously unreliable. (37) Indeed, since the U.S. Supreme Court ruled the use of jailhouse informants constitutional in 1966, over 140 people have been exonerated in murder cases that involved jailhouse informant testimony. (38) Because they are already behind bars, jailhouse informants have a greater incentive to lie and are highly motivated to cooperate with law enforcement officials. (39) As one researcher puts it, "they have so little to lose and so much to gain ...," (40) Moreover, living in close quarters with other inmates awaiting trial makes it easier for them to fabricate testimony based on details that they overhear and more likely that they will be solicited for testimony from officials. In the words of researcher Alexandra Natapoff, they are "surrounded by a ready-made supply of vulnerable targets who are already suspected of criminal conduct." (41) Among this "ready-made supply of vulnerable targets" are veteran informants who educate other inmates on how to convincingly fabricate information. (42) They learn to craft information that sounds accurate by stealing other inmates' legal papers, finding news reports, and colluding with others both on the inside and the outside. (43) The ease with which a jailhouse informant can convincingly fabricate testimony thanks to their unique position is illustrated by the case of Leslie White:

      [White] demonstrated for the Los Angeles Sherriff's Department that he could convincingly fabricate a fellow inmate's murder confession. White proved that a jailhouse informant can gather enough information about a particular crime to testify against a defendant at trial without ever having met the defendant. Indeed, White and several other informants regularly used by the District Attorney's office have admitted to giving false testimony about various defendants' jailhouse confessions in order to obtain lenient treatment in their own cases. (44) Given that the unique position of jailhouse informants increases their propensity and ability to fabricate testimony, any reliance on jailhouse informant testimony in court is a serious cause for concern. Randy Arledge, who spent more than fourteen years in prison for a murder he did not commit thanks to the false testimony of a jailhouse informant, summed up this reality in simple, yet foreboding, language: "There'll always be somebody in jail that will lie for you.... If you don't stop the jailhouse inform[ants] ... the wrongful convictions ain't ever gonna stop." (45)

   3. Judicially-Imposed Constraints on the Use of Jailhouse Informants

      There are some judicially-imposed constraints on the use of jailhouse informants in criminal proceedings. In 1964, the Supreme Court held in Massiah v. United States that the Sixth Amendment prohibits the government from "deliberately clicit[ing]" information from a suspect that has been formally charged with a crime in the absence of counsel. (46) In other words, the government may not strategically use a jailhouse informant to elicit incriminating information from a...